CENTRAL BANK OF INDIA Vs. PRAKASH DIGAMBER ADHAO

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 4-12-1989 passed by the Additional District Judge (Mr. J. H. Bhatia) in Regular civil Appeal No. 161 of 1989, whereby the appeal was allowed and the suit filed by the respondent Central Bank of India for recovery of loan amount was dismissed against the appellant/defendant No. 2.

(2.) BRIEFS facts are required to be stated as under: the plaintiff filed a suit for recovery of Rs. 39,131. 85 against the defendants on the contentions that the defendants No. 1 borrowed the loan of rs. 51,000/- for purchase of matador on 22-9-1979 by executing a deed of hypothecation (Exh. 45) on the date day. The defendants Nos. 2 and 3 stood guarantors to the said loan and had executed a deed of guarantee (Ex. 47 ). The defendant No. 2 is the real brother of defendant No. 1. The loan amount was disbursed to defendant No. 1 who agreed that the repayment would be by way of instalments. He stopped paying the instalments since 1981. On 21-9-1982, the defendants Nos. 1 and 2 acknowledged the liability and executed fresh documents in favour of the bank. Demand notice was served, but the outstanding amount remained unpaid and, therefore, the bank had filed for recovery of the outstanding amount against the defendants.

(3.) THE appellant/defendant No. 2 resisted the claim pf the bank by filing his separate written statement specifically pleading that even the name of the officer who had signed the plaint was not disclosed and therefore the suit was not duly signed by the authorities of the bank. Defendant No. 1 also pleaded that the loan was actually borrowed by defendant No. 2 who is his elder brother and according to him the defendant No. 2 was a medical practitioner and could not obtain the loan for the purchase of matador in his own name and, therefore, he obtained the loan in the name of defendant No. 1 who was educated unemployed. It was contended that defendant No. 1 was not liable to pay the amount and that the defendant No. 2 did not acknowledge the liability by execution of any valid document. On the aforesaid pleadings, the court framed several issues and thereafter the parties had examined the witnesses. The trial Court on consideration of the evidence adducted by the parties and on hearing the learned Counsel for the parties, recorded the finding that the defendant No. 1 had borrowed the loan from the bank and negatived the contention of defendant No. 2 that he had signed on the blank printed stamp papers and that the loan amount was borrowed by defendant no. 1 and he did not stand as guarantor. The trial Court also recorded the finding that the liability has been acknowledged by defendants No. 1 and 2 by virtue of the renewed documents dated 21-9-1982 and that the suit was within limitation. Consistent with these findings, the trial Court decreed the suit and directed the defendants Nos. 1 and 2 to pay the outstanding amount with interest and costs. The defendants No. 2 being aggrieved by the judgment and decree passed by the trial Court carried appeal to the District Court. The learned Additional District Judge by his judgment dated 4-12-1989 allowed the appeal and dismissed the suit with costs against defendant No. 2. This judgment is under challenge in this second appeal.